Brussels, 21/09/2007 (Agence Europe) - On Friday 21 September, the Commission announced that certain conditions imposed by the Spanish authorities on Enel and Acciona for their proposed acquisition of control of Endesa may be incompatible with Article 21 of the EU Law on Mergers, which stipulates that the Commission has exclusive competence for deciding on a concentration with Community dimension. The Commission refers in particular to the conditions imposed by the National Energy Commission (“CNE”) in its decisions of 26 April and 4 July 2007. The Spanish authorities have 30 days from the day of the notification of the Commission's preliminary assessment to express their views.
Invoking national interests, Spanish authorities wish to keep a right of scrutiny on decisions by members of the Enel management board regarding the company acquired. This means CNE is to keep the right to cancel a decision by Endesa shareholders if such a decision has an adverse impact on Spanish interests. The Commission, which has not yet concluded its assessment, considers at this stage that such restrictions run counter to Community rules on the free movement of capital and goods, and against freedom of establishment. In order to be acceptable, any additional restriction imposed by Madrid on this concentration of Community dimensions, already approved by the Commission on 5 July (EUROPE 9462), should be proportionate and totally compatible with EU law. We would point out that the CNE had already earned the Commission's displeasure when it imposed conditions on the acquisition of Endesa by the German company, E.On (EUROPE 9332), which went on to abandon its project. (cd)